Wynne v. . Small

Smith, C. J. (after stating the facts). The imputed imperfection in the form of the probate, as we understand, lies in the want of proof of execution by the feme bargainor before the private examination was taken, an alleged essential prerequisite thereto, and necessary to the operation of the deed as to her. But for the intervention of the homestead claim, this omission would only leave unimpaired, in her, the contingent right of dower, but would not affect the right to *136 possession under the deed rightfully executed and proved as the deed of her husband. The law regulating conveyances of the lands of married women formerly required the execution of the deed by them to be first acknowledged, as also by their husbands, preceding the private examination, to ascertain if it was voluntary and as a free act; and it was held in Burgess v. Wilson, 2 Dev., 306, that the acknowledgment was an indispensable condition of its efficacy .in passing the feme’s estate.' The statute was afterwards modified, so as to admit proof also, by a subscribing witness, but still, in whatever mode done, it must precede the private examination. Rev. Code, ch. 37, sec. 8; Sutton v. Sutton, 1 D. & B., 582. Such is the present law — The Code, § 1246, subsecs. 4, 5, 6 and 7. If, in fact, the feme covert’s execution of the deed was proved by the witness, when he proved the execution by other parties, the effect of the failure to permit evidence of the omitted fact would be to invalidate a conveyance made and proved as the law requires, because of an inadvertence in the officer who acted .in drawing his certificate. It would be a reflection upon judicial procedure if such results were to follow, and the case admitted of no remedy. If records and quasi records omit to speak the truth, they should be corrected when they fail to do so, that they may possess, as they import, absolute verity in all their recitals. The cases where such defects are supplied in judicial proceedings are numerous, and scattered through the Reports. State v. Bordeaux, 93 N. C., 560; Strickland v. Strickland, 95 N. C., 471; Perry v. Adams, 83 N. C., 266. It is true that the certificate, while it retains its form, from the verity attaching to it as such, must, be accepted, when it comes up collaterally, and its recitals cannot be disproved nor its omissions supplied bj^ extraneous proof. It may, and should, be itself amended, and made to conform to the truth, in a proper proceeding, and, perhaps, summarily, by motion, *137 when all necessary parties are present, and when so corrected it speaks from the original date. It may be impeaehfed, however, in an independent action, upon the ground of infancy, notwithstanding the private examination, for this is an incurable defect, unless by subsequent ratification, as held in Jones v. Cohen, 82 N. C., 75. See also, Epps v. Flowers, 101 N. C., 158; Hall v. Castleberry, 101 N. C., 153 But, as we interpret the terms of the submission to the Judge, he was at liberty to hear the testimony and find the facts disclosed by it, and if the certificate was amendable and the imperfections could be thus legally corrected, he should declare the law and proceed to judgment upon the case. Thus understood, there is no error, and the judgment must be affirmed. Affirmed.